Opinion
NO. 2015-CA-000784-MR
07-22-2016
BRIAN STACY APPELLANT v. STEVE HANEY, WARDEN; AND KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEES
BRIEF FOR APPELLANT: Brian Stacy, Pro se Burgin, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 15-CI-00022 OPINION
AFFIRMING
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BEFORE: DIXON, NICKELL, AND VANMETER, JUDGES. VANMETER, JUDGE: Brian Stacy appeals the opinion and order of the Franklin Circuit Court dismissing his Petition for Declaration of Rights, brought pursuant to KRS 418.040, challenging the Kentucky Department of Corrections and Warden Steve Haney's (collectively referred to as "KDOC") disciplinary proceedings against him. For the following reasons, we affirm.
Kentucky Revised Statutes. --------
On September 5, 2014, a Kentucky Horse Park employee, Wes Lanter, observed Stacy's mother, Eugenia Stacy, driving behind the Horses of the World Barn at the Kentucky Horse Park. Lanter followed Eugenia to the Dressage Complex, where she informed Lanter that she was going to the restroom. While waiting for Eugenia to exit the restroom, Lanter contacted his supervisor who, in turn, contacted Trooper Shank. Lanter informed Trooper Shank that Eugenia was acting suspicious, and that he had seen her there the month before.
After two minutes, Eugenia exited the restroom, briefly watched a competition in the Dressage Complex, visited a photo vendor, and then again tried to drive to the Horses of the World Barn. Lanter stopped Eugenia, informing her that she could not drive up to the Horses of the World Barn, and she appeared to leave. Officer Shank checked the vehicle plates and found that the car was registered to "Gene Peck." Officer Shank contacted Blackburn Correctional Complex, and Captain Sizemore checked the Kentucky Offender Management System for Gene Peck. The system revealed that Gene Peck was affiliated with Brian Stacy.
Brian had previous disciplinary write ups for smuggling contraband items into Blackburn Correctional Complex through the Kentucky Horse Park with his mother's assistance. Captain Sizemore reviewed Brian's telephone calls from September 2, 2014 through September 5, 2014 and ascertained that Brian had used code in his discussions with his mother, referring to the horse park as "John" and tobacco as "feed." In a conversation with his mother following the incident, Brian discussed a problem at "John's".
Based on this information, Brian was issued two write-ups: attempted possession or promoting of dangerous contraband per Correctional Policies and Procedure ("CPP") 15.2, 6-04, and attempted smuggling of contraband items into/out of/within institution per CPP 15.2, 4-05. Brian waved his right to 24-hour notice, and a hearing was held on September 9, 2014. Brian was found guilty of both charges based on the testimony of Lanter, Trooper Shank, and Captain Sizemore. Brian appealed these decisions, and the Warden affirmed the charges. Subsequently, Brian filed a Petition for Declaration of Rights which the trial court dismissed. This appeal follows.
On appeal, Brian makes two arguments in support of his contention that the trial court should not have dismissed his petition for declaration of rights. First, he argues that tobacco is not "dangerous contraband" for purposes of CPP 9.6. Second, he claims that CPP 9.6(II)(A)(8) violates KRS 13A.130 and is thus unenforceable.
"Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo." Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010). Dismissal for failure to state a claim upon which relief can be granted is inappropriate "unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim." Pari-Mutuel Clerks' Union v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977).
First, Brian argues that tobacco is not dangerous contraband. However, the record indicates that Brian did not raise this issue on his appeal to the warden. "The failure to raise an issue before an administrative body precludes a litigant from asserting that issue in an action for judicial review of the agency's action." O'Dea v. Clark, 883 S.W.2d 888, 892 (Ky.App. 1994), citing Personnel Board v. Heck, 725 S.W.2d 13 (Ky.App. 1986). Therefore, we will not address this argument.
Next, Brian asserts that CPP 9.6(II)(A)(8) modifies KRS 520.010 in violation of KRS 13A.130 and is therefore null, void and unenforceable. Again, Brian failed to raise this issue in his appeal before the warden, and we will not address it on appeal. See O'Dea, 883 S.W.2d at 892.
As for Brian's overarching assertion that the trial court abused its discretion in dismissing his petition for declaration of rights, we agree with the trial court that the prison disciplinary board afforded Brian his requisite due process rights. Due process, in prison disciplinary hearings where loss of good time is at stake, requires three things:
(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder (sic) of the evidence relied on and the reasons for the disciplinary action.Webb v. Sharp, 223 S.W.3d 113, 117-18 (Ky. 2007); Smith v. O'Dea, 939 S.W.2d 353, 357 (Ky.App. 1997); Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985). The minimum due process requirements are met if the findings of the disciplinary board are supported by some evidence. Webb, 223 S.W.3d at 118. Brian was afforded all three of these procedural requirements and we agree that the prison disciplinary board's finding of guilt was supported by some evidence. The trial court did not err by dismissing Brian's petition for declaration of prisoner rights.
For the foregoing reasons, the opinion and order of the Franklin Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Brian Stacy, Pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham
Frankfort, Kentucky